PROBATE AND ADMINI CAUSE NO 19846 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA PROBATE AND ADMINISTRATION CAUSE NO. 19846 OF 2024 IN THE MATTER of the estate of the late TRIZA VICTORIA SHIRIMA And IN THE MATTER of application for re-opening of administration of the estate of the late TRIZA VICTORIA SHIRIMA and for grant of the letters of Administration by CHRISTIAN CHARLES SHIRIMA RULING 13th December 2024 & 14th February 2025 Masara, J The Applicant herein is the son of the late Triza Victoria Shirima (herein after, "the deceased") who died at Morningside, South Africa on 6th September 2016. After her death, Mr Michael Ngaleku Shirima was appointed by this Court to administer the estate via Probate Cause No. 13 of 2016. Mr Michael Shirima duly administered the said estate which was later closed by an order of this Court dated 21st May 2018. It is on record that, at the time of her death, the deceased was a defendant in Commercial Case No. 54 of 2016 which was pending before this Court. The said case was determined against her favour and a decree was issued on 11/12/2020. Dissatisfied, the then administrator preferred and appeal to the Court of Appeal of Tanzania in Civil Appeal No. 223_pf 1 | Page 2022 which is still pending before the Court of Appeal. Unfortunately, the administrator, Mr Michael Ngaleku Shirima, also died before the Appeal was determined. Following the demise of the said Administrator, Mr Christian Charles Shirima, the petitioner herein, filed this Petition before this Court for the purposes of re-opening the probate of the late Triza Victoria Shirima and thereafter he be appointed as the administrator of the estate of the deceased. The Petition was brought under the provision of section 56 of the Probate and Administration of Estates Act, section 95 of the Civil Procedure Code and the Judicature and Application of Laws Act, Cap. 358 [R.E 20191.. The Application is accompanied with documents such as: the death certificate of the late Triza Victoria Shirima, an order appointing the initial administrator of the estate and an order closing Probate Cause No. 13 of 2016, the decree in Commercial Case No, 54 of 2016, the Memorandum of Appeal before the Court of Appeal in Civil Appeal No, 223 of 2022, the death certificate of one Michael Ngaleku Shirima, administration bond with surety made under section 67 and rule 66, certificate as to the surety's financial position, Administrator's oath made under section 66 and rules 39(c) and 65, consents of heirs made under Rule 71 and affidavit as to domicile made under Rule 64. 2 | Page From the record, the deceased was a Christian and was survived by three relatives; namely, Vicent Ngaleku Shirima, Victor Abraham Shirima and Marie Sylvia Shirima. It was further stated that the deceased died intestate as a valid will could not be procured. As per the pleadings in this Petition, the Petitioner urged for the reopening of the probate that was closed by an order of this Court on 21/05/2018 due to the fact that there is a pending appeal before the Court of Appeal of Tanzania initiated by the former administrator before his demise. When the matter was called in for hearing, the Petitioner was dully represented by Mr Elvaison E. Maro, learned Advocate. The petitioner also appeared in person accompanied by Mr Vicent Shirima. Upon inquiry by this Court, the two stated that the deceased left four children all of whom support the Petitioner to be appointed as an administrator of the deceased's estate. They also stated that the Petitioner is also the administrator of the estate of the late Michael Ngaleku Shirima, their late father. Counsel for the Petitioner addressed this Court on the Petition and urged this Court to grant the same. He submitted that the Petition is for reopening of the estate of the late Triza Victoria Shirima aimed at allowing the Petitioner to be joined in the Court of Appeal Civil Appeal No. 223 of 3 | Page 2022 and an Application for Stay of execution No. 579/16 of 2021 pending before the Court of Appeal. Mr Maro, relying on the grounds expounded in the affidavit in support of the Petition, further submitted that, as a general principle in probate issues, once a probate matter is closed, it is conclusive on the matter determined, but it is not conclusive as to collateral matters. That, a collateral matter arises when there is a change of circumstances or a new event. Expounding further, Mr Maro was of the view that, in case of a new event, such as a discovery of the deceased's properties not included in the administered estate, it may lead to the reopening of the estate in order to allow the unadministered estate to be administered. In the current matter, Mr Maro conferred that, the late Michael Shirima, closed the probate cause but was unable to close the pending appeal before the Court of Appeal, which should be a ground for the reopening of the former estate. To prop his stance, he referred this Court to its two decisions in Edina Mfuruki vs Grace Mfuruki, PC Civil Appeal No. 16 of 2021 [2022] TZHC 11774 and Matilda Thomas Philip and 2 Others vs Margreth Philip Olotu, Misc Civil Application No. Ill of 2020 which allowed a reopening of the estate on justifiable grounds. 4 | Page On the basis of those decisions, Mr Maro prayed that the Petition be allowed so as to allow the interest of the late Triza to be properly prosecuted in the mentioned appeal, where the deceased is among the Appellants. I have carefully and have given enough thoughts to the Petition before me alongside the attachments, the submission by Counsel for the Petitioner and the nature of this probate matter. To do justice to this decision, I find it useful to clearly encapsulate circumstances that may lead to a conclusion whether or not this Court can reopen the closed probate without falling into the pit of functus officio. In the case of Kamundi V. R [1973] EA 540 cited with approval in the decision of the Court of Appeal of Tanzania in Tanzania Telecommunications Co. Ltd & Others vs Tri Telecommunications Tanzania Ltd (Civil Revision 62 of 2006) [2006] TZCA 83 Tanzlii, the defunct Court of Appeal for East Africa had this to say: "A further question arises, when does a magistrate's court become functus officio and we agree with the reasoning in the Manchester City Recorder case that this case only be when the court disposes of a case by a verdict of not guilty or by passing sentence or making some orders finally disposing of the case." (Emphasis original). 5 | Page Although the above case was dealing with a criminal matter, the ultimate decision has a bearing in the matter under consideration. It is a settled position of law that, in probate matters, when the inventory has been filed in court by the administrator or executor, as the case may be, and the probate matter or administration cause has been closed, the court becomes functus officio with regard to all matters that shall be brought up before it after the closure of the cause. It is common ground that this Court, Opiyo, J., made an order closing Probate Cause No. 13 of 2016 on 21st May 2018. In that regard, it ceased to have powers over matters relating to the cause unless the exceptions expounded by Mr Maro exist. In the case of Ahmed Mohamed Al Laamar vs Fatuma Bakari & another (Civil Appeal No 71 of 2021) [2012] TZCA 22(6 July 2012) the Court of Appeal stated categorically as follows: "Given the fact that the appellant had already discharged his duties of executing the will, whether honestly or otherwise, and had already exhibited the inventory and accounts in the High Court, there was no granted probate which could have been revoked or annulled in terms of section 49(1) of the Act. As the Applicant was already functus officio." 6 | Page It is evident from the above decision and many other decisions of this Court and the Court of Appeal, that the Court becomes functus officio once the Probate is closed by the court following the filing of an inventory and final accounts of the estate. I am mindful of the claim advanced by the Petitioner that the reopening of this probate is to allow the prosecution of the pending appeal before the Court of Appeal of Tanzania to which the deceased is one among the appellants or intended appellants. Counsel for the Petitioner relied on the case of Edina Mafuruki (supra) which detailed circumstances where a court can reopen a closed probate cause. In the cited case, this Court pinpointed the circumstances for the reopening of a close probate to include, the discovery of deceased's new assets. I find the current matter distinguishable from the circumstances that prevailed in the cited case. I will explain. As per the pleadings, it is evident that in Probate Cause No. 13 of 2016 the administrator was appointed on 16th February 2017 and the final accounts as well as the inventory were filed before this Court on 14th April 2018. Further, an order closing the probate was issued by this Court on 21st May 2018 marking the finality of the matter. But the pleadings reveal that as on 11th December 2020 a decree was entered against the deceased and an appeal was initiated by her administrator on 3rd June 7 | Page 2022, that is Civil Appeal No. 223 of 2022, which is still pending before the Court of Appeal. I therefore cannot find the analogy made by Counsel convincing. The closure of the estate by the then administrator entailed transfer of all the interests of the deceased to the beneficiaries. It is difficult to severe one of the interests thereof and categorise it as a new discovered property to enable the reopening of the closed estate. The Court of Appeal of Tanzania in the case of Andrew C. Mfuko (suing in person) vs George C. Mfuko, Civil Appeal No.320 of 2021[2022] TZCA 747(24 November 2022) had this to say: "On our part, having heard the advocates' submissions to the questions we posed, there is no dispute that the order of the High Court in Probate Cause dosed the matter with the result that the respondent ceased to be an administrator. Having vacated office as an administrator, he could not sue or be sued in that capacity. Apparently, both learned advocates agree that it was wrong for the appellant to have sued the respondent in his capacity as an administrator. That means the suit was instituted against a person who had no capacity to act as an administrator regardless of the fact that the order dosing the Probate Cause may have been erroneous." The decision of the Court of Appeal is binding to this Court. After the closure of the probate cause, the administrator ceased to be an administrator unless and until the initial order granting the closure was 8 | Page vacated. In this matter, the facts are different, in the sense that there emanated a suit and appeal against the deceased after the closure of the probate cause by the former administrator without seeking leave of this Court in that respect. In the same spirit, the current Petitioner seeks the reopening of the closed probate so that he can prosecute the appeal that ought not to have been initially initiated against the deceased. The same cannot be accommodated under the umbrella of discovery of new assets of the deceased as urged by the learned advocate for the Petitioner. Thus, I find no iota of reasons to warrant this Court to reopen the closed probate, as the Petitioner has failed to substantiate that there is a discovery of new assets of the deceased to be administered by the current Petitioner. The Petition is, therefore, devoid of merit and is dismissed accordingly. DATED and DELIVERED at Arusha this 14th day of February 2025. B. Masara JUDGE 9 | Page